sb 18 implementation training -...

SB 18 Implementation Training

Table of Contents Section1: SB 18 Application to TxDOT............................................................1

Suzanne Mann, TxDOT Attorney, Office of General Counsel Section 2: Procedural Changes in Eminent Domain.........................................5

Randy Ward, TxDOT Attorney, Right of Way Division

a. Checklist

b. Time Line

c. Offer Letter Forms

d. Petition

e. Judgment

Section 3: Access: The Brave New World......................................................43

John Ewald, TxDOT Attorney, Office of General Counsel

a. Outline

b. Method of Appraisal and Guidance to Appraisers

c. New Access Management Policy

d. Sale of Access Rights

e. Deed Form

Section 4: SB 18.............................................................................................73 Section 5: 43 TAC Chapter 21 Changes ......................................................103 Section 6: Contact Information .....................................................................119 Section 7: Newsletters..................................................................................123 Section 8: Notes ...........................................................................................125

Section 1: SB 18 Application to TxDOT

Page 1

SB 18 An Overview

1. Introduction

A. Implementation Team

B. Purpose of this training

C. GroupWise account for questions and continuing information

D. Newsletter

E. Online information

2. Why SB 18?

A. Eminent Domain legislative reform efforts began in 1995 Legislative

Session after Schmidt case

B. 2007 session; Governor veto

C. 2009 and 2011 session bills

D. What was not included in SB 18, but was included in other drafts

3. SB 18: Highlights of the Bill as it applies to TxDOT

A. Access Damages

B. Eminent Domain Authority and Procedure

C. Repurchase Rights of Owner

4. Implementation of SB 18

A. Coordination with Office of Attorney General, Right of Way Division and

Office of General Counsel

B. Eminent Domain Minute Order, motion, minutes,

C. Rule changes to 43 TAC 21

D. Changes to various forms

(i) offer letters

(ii) petition

(iii) judgment

(iv) Landowner Bill of Rights

(v) Appraisal Form

E. Policy Decision

(i) Access Valuation Methodology

(ii) Access Management Plan

F. Training

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Section 2: Procedural Changes in Eminent Domain

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SENATE BILL 18 NEGOTIATION AND

EMINENT DOMAIN PROCEDURES CHECKLIST

DISCLOSURE OF APPRAISAL REPORTS BY CONDEMNING AUTHORITIES

At the time of the initial offer, must disclose by certified mail ALL appraisal reports of the owner’s

property produced or acquired by the condemning entity which were prepared within 10 years prior to

the offer.

No longer just those “used in determining the final offer”.

DISCLOSURE OF APPRAISAL REPORTS BY PROPERTY OWNER

Limited to appraisal(s) “used in determining the owner’s opinion of value” (existing law);

Disclosure time shortened: not later than the earlier of 10 days after report’s receipt or the third business

day before the special commissioner’s hearing (the latter is shortened from 10 to 3 days before hearing).

PROHIBITION OF CONFIDENTIALITY OF ACQUISITION OFFER OR AGREEMENT

Cannot include a confidentiality provision in any offer or purchase agreement.

Requirement to inform the owner of the right to: discuss with others any offer, agreement or acquisition

or keep the offer or agreement confidential (subject to TxDOT obligations under the public records act).

Revised offer letter forms address this.

BONA FIDE OFFER REQUIRED

MUST make a “bona fide offer” to acquire the property voluntarily.

An entity makes a bona fide offer if complies with ALL of the following requirements:

1. written initial offer

2. written final offer made 30+ days after initial offer based on (equal or greater than the

amount of) a written appraisal from a certified appraiser;

Caveat: to be a BFO, cannot make a FINAL offer based on an in-house value finding by a

non-certified TxDOT employee, though an INITIAL offer can based on one.

3. provide with final offer or earlier: a) copy of written appraisal on which final offer is based;

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b) copy of the deed, easement or other instrument by which the property or property right is

proposed to be conveyed; sought to be acquired; and c) Landowner’s Bill of Rights.

Notes: TxDOT initial and final offer letter revisions provide the proposed conveyance

instrument with the final offer letter and continue the recommended practice of providing

the LOBR with the initial offer letter. The appraisal on which the final offer is based

must be provided by certified mail RRR if that offer is based on a different appraisal than

was the basis of the initial offer.

4. provides property owner at least 14 days to respond to final offer before filing E.D. petition

(final offer letter revision).

CONSEQUENCE OF FAILING TO MAKE A BONA FIDE OFFER

If the court hearing the E.D. case determines the condemnor did not make a BFO to acquire the property

from the owner voluntarily “as required by Section 21.0113”, the court shall: abate (not dismiss) the

E.D. proceeding; order the condemnor to make a bona fide offer; and order the condemnor to pay any

reasonable attorney’s fees and other professional fees incurred by the property owner that are directly

related to the violation.

CONDEMNATION PETITION

Must state “with specificity” the public use (vs. the “purpose”) for which the entity intends to acquire

the property.

Must state that the entity made a bona fide offer to acquire the property from the owner voluntarily “as

provided by Section 21.0113”.

Must provide a copy of the filed condemnation petition to the “property owner” by certified mail RRR.

Recommend, at minimum, providing copy of filed petition to fee owner(s) with the filed notice

of lis pendens. However, since notice of filing of lis pendens has to be served on all parties

anyhow (recommended by certified mail RRR), the safest approach is to serve all parties to the

E.D. proceeding.

Example of petition/lis pendens transmittal letter

We enclose a copy of the notice of lis pendens the State of Texas has filed in the County's

official records, related to an eminent domain proceeding filed by the State to acquire

certain property for highway purposes (see enclosed copy of the filed petition for

additional information). This required statutory notice of the filing of the petition and lis

pendens requires no specific action by you at this time. In the future you will receive

advance notice of the date of the scheduled special commissioners' hearing.

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SPECIAL COMMISSIONERS’ HEARING

The judge shall provide each party a reasonable period to strike one of the three commissioners

appointed by the judge.

The special commissioners may not schedule a hearing…before the 20th day after the date the special

commissioners’ were appointed.

Must wait 20 days before the commissioners can even sign an order setting the hearing date (presumably

to accommodate a motion to strike a special commissioner).

Notice of hearing must be served on a party not later than the 20th (formerly the 11th) day before the

day set for the hearing.

DISCLOSURE OF POTENTIAL RIGHT TO REPURCHASE PROPERTY (CITY, COUNTY,

STATE ROW NO LONGER EXEMPTED)

An entity with eminent domain authority shall disclose in writing to the property owner, at the time of

acquisition of the property through eminent domain, that the owners or his heirs, successors or assigns

may be entitled to (a) repurchase the property under certain circumstances; (b) request from the entity

certain information relating to the use of the property and any “actual progress” made toward that use;

and (c) that the repurchase price is the price paid to the owner at the time the entity acquired the property

through eminent domain.

Note: this will be handled in, or via an attachment to, the eminent domain judgment.

CHANGE OF ACCESS IMPAIRMENT COMPENSABILITY STANDARD

Current law: “material and substantial” impairment; compensability threshold a question of law for the

court.

SB 18: “a material impairment of direct access on or off the remaining property that affects the market

value of the remaining property.” “Direct access” is defined as “ingress and egress on or off a public

road, street, or highway at a location where the remaining property adjoins that road, street or highway”

(circuity of travel and diversion of traffic excluded).

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Form ROW-N-IOLPT Rev. 5/2004 GSD-EPC Page 1 of 2

REVISED NIOLPT (PARTIAL TAKING)

Date:

County: Parcel: Federal Project No.: Highway: ROW CSJ: From: To: BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED NO. _________________________ Dear , In acquiring property for the highway system of Texas, the Texas Department of Transportation (the “Department”) follows a definite procedure for appraising the land needed and for handling personal negotiations with each owner. As has been or will be explained by the State’s negotiator, , a portion of your property located , as described in the enclosed property description, is to be acquired for the construction or improvement of the above-referenced highway project.

We believe at this stage of the purchase process it is mutually beneficial to confirm that, based on an appraisal,

the State is authorized to offer you $ for your property, which includes $ for the property to be

purchased and $ for damages to your remaining property. This amount is the total amount of just

compensation for all interests in the portion of your property to be acquired, as determined in accordance with

State law, less oil, gas and sulphur, subject to clear title being conveyed to the State. In accordance with State law,

it is the policy of the Department to negotiate with the fee owner(s) of the real property with the understanding that

you will, in turn, negotiate with any lessee or other party who may own any interest in the land or improvements,

with the exception of public utility easements, which will be handled separately by the Department. This offer to purchase includes the contributory values of the improvement(s) listed below, which are considered to be part of the real property. Since the improvement(s) must be removed, it is the policy of the Department to permit owners who convey voluntarily to the Department to thereafter retain the improvement(s), if they wish to do so. The retention values shown below are the estimated amounts the improvement(s) would bring if sold on public bids. If you wish to retain title to any of the following improvement(s) and remove it (them) from the right of way, the amount of the above offer must be reduced by the appropriate retention amount(s). This option to retain the improvement(s) does NOT apply should it become necessary for the Department to acquire the real property by eminent domain.

Improvement Amount to be Subtracted if Retained $ $ $ $ $ $

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Form ROW-N-IOLPT Rev. 5/2004 Page 2 of 2

If you wish to accept the offer based upon this appraisal, please contact as soon as possible, at (___) ___-____, so that the process of issuing your payment may be started. If you are not willing to accept this offer, you may submit a written request for administrative settlement/counteroffer, setting forth a counteroffer amount and the basis for such amount, provided such settlement request is received in writing within 30 days from the date of this letter. Please note that your opportunity to submit an administrative settlement shall be forfeited if such a settlement request is not received by the Department within the 30 day time deadline. In the event the condition of the property changes for any reason, the State shall have the right to withdraw or modify this offer. After the date of payment of the purchase price, or the date of deposit in court of funds to satisfy the award of compensation as determined through eminent domain proceedings to acquire real property, you will be reimbursed for any fair and reasonable incidental expenses necessarily incurred in transferring title to the property for use by the Texas Department of Transportation. Expenses eligible for reimbursement may include (1) recording fees, transfer taxes and similar expenses incidental to conveying the real property to the Department and (2) penalty costs for prepayment of any preexisting recorded mortgage entered into in good faith encumbering the real property. Voluntary unnecessary expenses or expenses incurred in clearing questionable title will not be eligible for reimbursement. Eligible incidental expenses will be reimbursed upon submission of a claim supported by receipted bills or other evidence of actual expenses incurred. You may file a written request for review if you believe that the Department failed to properly determine the eligibility for, or the amount of, incidental expenses to be reimbursed. There is no standard form on which to request a review of a claim; however, the claim must be filed with this office within six months after you are notified of the Department’s determination on any claim for reimbursement. You may be entitled to additional payments and services under the State’s Relocation Assistance Program. It is emphasized, however, that any benefits to which you may be entitled under this program will be handled entirely separate from and in addition to this transaction. You will receive a brochure entitled “Relocation Assistance” which will inform you of eligibility requirements, payments and services which are available. You have the right to discuss with others any offer or agreement regarding the Department’s acquisition of the subject property, or you may (but are not required to) keep the offer or agreement confidential from others, subject to the provisions of Chapter 552, Government Code (the Public Records Act) as it may apply to the Department. Attached is a copy of the Texas Department of Transportation brochure entitled “Right of Way Purchase” which we trust will give you a better understanding of the procedures followed by the Department in purchasing property. We respectfully request the opportunity to meet with you or to otherwise discuss and answer any questions you may have regarding the details of the type of facility to be built, or concerning the Department’s offer or proposed purchase transaction. Also, please do not hesitate to contact at the telephone number provided above regarding any question you may have. Please see the enclosed copy of the Texas Landowner Bill of Rights. Finally, we enclose copies of all appraisal reports relating to your property being acquired which were prepared in the ten (10) years preceding the date of this offer and produced or acquired by the Department, including the appraisal on which this offer is based. Sincerely,

Right of Way Manager or other signatory

ENCLOSURES: Appraisal Report(s) Landowner Bill of Rights Brochure (“Right of Way Purchase”)

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Form ROW-N-IOLPT Rev. 5/2004 GSD-EPC Page 1 of 2

REVISED NIOLWT (WHOLE TAKING)

Date:

County: Parcel: Federal Project No.: Highway: ROW CSJ: From: To: BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED NO. _________________________ Dear , In acquiring property for the highway system of Texas, the Texas Department of Transportation (the “Department”) follows a definite procedure for appraising the land needed and for handling personal negotiations with each owner. As has been or will be explained by the State’s negotiator, , a portion of your property located , as described in the enclosed property description, is to be acquired for the construction or improvement of the above-referenced highway project.

We believe at this stage of the purchase process it is mutually beneficial to confirm that, based on an appraisal,

the State is authorized to offer you $ for your property. This amount is the total amount of just compensation

for all interests in the portion of your property to be acquired, as determined in accordance with State law, less oil,

gas and sulphur, subject to clear title being conveyed to the State. In accordance with State law, it is the policy of

the Department to negotiate with the fee owner(s) of the real property with the understanding that you will, in turn,

negotiate with any lessee or other party who may own any interest in the land or improvements, with the exception

of public utility easements, which will be handled separately by the Department. This offer to purchase includes the contributory values of the improvement(s) listed below, which are considered to be part of the real property. Since the improvement(s) must be removed, it is the policy of the Department to permit owners who convey voluntarily to the Department to thereafter retain the improvement(s), if they wish to do so. The retention values shown below are the estimated amounts the improvement(s) would bring if sold on public bids. If you wish to retain title to any of the following improvement(s) and remove it (them) from the right of way, the amount of the above offer must be reduced by the appropriate retention amount(s). This option to retain the improvement(s) does NOT apply should it become necessary for the Department to acquire the real property by eminent domain.

Improvement Amount to be Subtracted if Retained $ $ $ $ $ $

Page 15

Form ROW-N-IOLPT Rev. 5/2004 Page 2 of 2

If you wish to accept the offer based upon this appraisal, please contact as soon as possible, at (___) ___-____, so that the process of issuing your payment may be started. If you are not willing to accept this offer, you may submit a written request for administrative settlement/counteroffer, setting forth a counteroffer amount and the basis for such amount, provided such settlement request is received in writing within 30 days from the date of this letter. Please note that your opportunity to submit an administrative settlement shall be forfeited if such a settlement request is not received by the Department within the 30 day time deadline. In the event the condition of the property changes for any reason, the State shall have the right to withdraw or modify this offer. After the date of payment of the purchase price, or the date of deposit in court of funds to satisfy the award of compensation as determined through eminent domain proceedings to acquire real property, you will be reimbursed for any fair and reasonable incidental expenses necessarily incurred in transferring title to the property for use by the Texas Department of Transportation. Expenses eligible for reimbursement may include (1) recording fees, transfer taxes and similar expenses incidental to conveying the real property to the Department and (2) penalty costs for prepayment of any preexisting recorded mortgage entered into in good faith encumbering the real property. Voluntary unnecessary expenses or expenses incurred in clearing questionable title will not be eligible for reimbursement. Eligible incidental expenses will be reimbursed upon submission of a claim supported by receipted bills or other evidence of actual expenses incurred. You may file a written request for review if you believe that the Department failed to properly determine the eligibility for, or the amount of, incidental expenses to be reimbursed. There is no standard form on which to request a review of a claim; however, the claim must be filed with this office within six months after you are notified of the Department’s determination on any claim for reimbursement. You may be entitled to additional payments and services under the State’s Relocation Assistance Program. It is emphasized, however, that any benefits to which you may be entitled under this program will be handled entirely separate from and in addition to this transaction. You will receive a brochure entitled “Relocation Assistance” which will inform you of eligibility requirements, payments and services which are available. You have the right to discuss with others any offer or agreement regarding the Department’s acquisition of the subject property, or you may (but are not required to) keep the offer or agreement confidential from others, subject to the provisions of Chapter 552, Government Code (the Public Records Act) as it may apply to the Department. Attached is a copy of the Texas Department of Transportation brochure entitled “Right of Way Purchase” which we trust will give you a better understanding of the procedures followed by the Department in purchasing property. We respectfully request the opportunity to meet with you or to otherwise discuss and answer any questions you may have regarding the details of the type of facility to be built, or concerning the Department’s offer or proposed purchase transaction. Also, please do not hesitate to contact at the telephone number provided above regarding any question you may have. Please see the enclosed copy of the Texas Landowner Bill of Rights. Finally, we enclose copies of all appraisal reports relating to your property being acquired which were prepared in the ten (10) years preceding the date of this offer and produced or acquired by the Department, including the appraisal on which this offer is based. Sincerely,

Right of Way Manager or other signatory

ENCLOSURES: Appraisal Report(s) Landowner Bill of Rights Brochure (“Right of Way Purchase”)

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Form ROW-N-FOL Rev. 11/2006 GSD-EPC Page 1 of 1

REVISED NFOL

Date:

County: Parcel:

Federal Project No.: Highway:

ROW CSJ:

Limits From:

Limits To:

Dear , As you know, it is necessary for the State of Texas, acting through the Texas Department of Transportation, to construct a highway which requires the purchase of the property referred to above. Inasmuch as negotiations to purchase this property have not been successful to date, a final offer is hereby submitted to you. According to authorization by the Texas Transportation Commission, a total sum of $ is offered for the required property rights, save and except oil, gas and sulphur rights with no right of exploration on the above described property, subject to clear title being secured. Any compensation that may be due to you from this Department’s Relocation Assistance Program is not included in this offer because such funds are paid to eligible persons separately. If you desire to accept this offer, please contact ______________ at (___) ___-____ as soon as possible. If this offer is not accepted within fourteen (14) days from the date of delivery of this letter, it will be considered as having been rejected. We enclose herein a copy of the proposed instrument by which the property or property interest would be conveyed to the State. If you elect to reject this offer, eminent domain proceedings will be initiated by the State. Thereafter, the Court will appoint three disinterested real property owners who reside in the County to serve as Special Commissioners, a date will be set for a hearing and you will be notified of the time and place set for the hearing at which the Special Commissioners will hear the evidence presented and arrive at an award which will be filed with the Court. The State may then deposit the amount of the award with the Court, at which time the State will be entitled to take possession of the property involved. After the deposit is made, you may withdraw your share of the award. If the award exceeds the amount of any subsequent judgment, you are required to repay the State the excess amount and any excess amount not repaid to the State may be deducted from eligible payments, if any, due to you as the property owner under the Department’s Relocation Assistance Program. If either you or the State is dissatisfied with the amount of the Special Commissioners’ award, objections may be filed within the time prescribed by law and the case subsequently tried before the Court as are other civil cases.

Sincerely, Right of Way Manager or other signatory

Enclosure: Draft proposed conveyance instrument

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THE STATE OF TEXAS LANDOWNER'S BILL OF RIGHTS

Prepared by the Office of the Attorney General of Texas

This Landowner's Bill of Rights applies to any attempt by the government or a private entity

to take your property. The contents of this Bill of Rights are prescribed by the Texas

Legislature in Texas Government Code Sec. 402.03 and Chapter 21 of the Texas Property

Code.

I. You are entitled to receive adequate compensation if your property is taken for a public

use.

2. Your property can only be taken for a public use.

3. Your property can only be taken by a governmental entity or private entity authorized by

law to do so.

4. The entity that wants to take your property must notify you about its interest in taking your

property.

5. The entity proposing to take your property must provide you with an assessment of the

adequate compensation for your property.

6. The entity proposing to take your property must make a good faith offer to buy the

property before it files a lawsuit to condemn the property.

7. You may hire an appraiser or other professional to determine the value of your property

or to assist you in any condemnation proceeding.

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8. You may hire an attorney to negotiate with the condemning entity and to represent you in

any legal proceedings involving the condemnation.

9. Before your property is condemned, you are entitled to a hearing before a court appointed

panel that includes three special commissioners. The special commissioners must determine

the amount of compensation the condemning entity owes for the taking of your property. The

commissioners must also determine what compensation, if any, you are entitled to receive

for any reduction in value of your remaining property.

10. If you are unsatisfied with the compensation awarded by the special commissioners, or

if you question whether the taking of your property was proper, you have the right to a trial

by ajudge or jury. If you are dissatisfied with the trial court'sjudgment, you may appeal that

decision.

CONDEMNATION PROCEDURE

Eminent Domain is the ability of certain entities to take private property for a public use.

Private property can include land and certain improvements that are on that property.

Private property may only be taken by a governmental entity or private entity authorized by

law to do so. Your property may be taken only for a public use. That means it can only be

taken for a purpose or use that serves the general public. However, Texas law prohibits

condemnation authorities from taking your property to enhance tax revenues or foster

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economic development.

Your property cannot be taken without adequate compensation. Adequate compensation

includes the market value of the property being taken. It may also include certain damages,

if any, to your remaining property caused by the acquisition itself or by the way the

condemning entity will use the property.

HOW THE TAKING PROCESS BEGINS

The taking of private property by eminent domain must follow certain procedures. First, the

entity that wants to condemn your property must provide you a copy of this Landowner's Bill

of Rights before or at the same time the entity first represents in any manner to you that it

possesses eminent domain authority.

Second, if it has not been previously provided, the condemning entity must send this

Landowner's Bill of Rights to the last known address of the person in whose name the

property is listed on the most recent tax roll at least seven days before the entity makes a final

offer to acquire your property.

Third, the condemning entity must make a good faith offer to purchase the property. The

condemning entity's offer must be based on an investigation and an assessment of adequate

compensation for the property. At the time the offer is made, the governmental condemning

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entity must disclose any appraisal reports it used to detel t1linc tile value of its OcrC! to dcquile

tile plOpelly .pr duced Of acqu ired relating peclfically l the properlY and prepared in th ten

yt:ar preceding the date of the offer. [ ee Section 7 of enate Bill 18 amending ction

21.0111 (a) of the Texa Propert Code I You have the right to either accept or reject the

offer made by the condemning entity.

CO, DEMNATION PROCEEDINGS

If you and the condemning entity do not agree on the value of the property being taken, the

entity may begin condemnation proceedings. Condemnation is the legal process for the taking

of private property. It begins with a condemning entity filing a claim for your property in

court. If you live in a county where part of the property being condemned is located, the

claim must be filed in that county. Otherwise, the claim can be filed in any county where at

least part of the property being condemned is located. The claim must describe the property

being condemned, state with pecificity the---n',Tteml-ed public use, laLe the name of the

landowner, a tatelllei/tstate that the landowner and the condemning entity were unable to

agree on the value of the property, ( tate that the condemning entity provided the

landowner with the Landowner's Bill of Rights statement, and late Lhal Lhe ondemning

entity made a b na fide offer to acquire the property from the property owner voluntarily.

I ee ection 9 of coate HillIS amending Section 21.012{b) oftbe Texa Property Code I

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SPECIAL COMMISSIONERS' HEAR]~ G

After the condemning entity files a claim in court, the judge will appoint three landowners

to serve as special commissioners. The Judge will give you a rea "onable period to trike one

of the sp ial l:ommi ion rs. If a commi sioner I truck. the ludg~ will app int a

replacement. I ee Section 10 of eoate Bill IS amending Sf tion 2J.014(a) of the Ten

Propert~' Code} These special commissioners must live in the county where the

condemnation proceeding is filed, and they must take an oath to assess the amount of

adequate compensation fairly, impartially, and according to the law. The special

commissioners are not authorized to decide whether the condemnation is necessary or if the

public use is proper. After being appointed, the special commissioners must schedule a

hearing at the earliest practical time and place and provide you written notice of that hearing.

You are required to disclose to the governmental condemning entity. at least tell days befOic

tlle special COIlJIlIissiollels' healing, any appraisal reports used to determine your opinion

about adequate compensation for the property. uch di clo ure mu t take place no later than

tbe earlier of ten days after receipt of the rep rl or three bu iness day' before the pecial

commis ioners' hearing. [See eetion 7 of eoate Bill 18 amending eetion 21.011 I(b)

of tbe Texas Property Code] You may hire an appraiser or real estate professional to help

your determine the value of your private property. You may also hire an attorney regarding

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these proceedings.

At the hearing, the special commissioners will consider evidence on the value of the property,

the damages to remaining property, any value added to the remaining property as a result of

the project, and the uses to be made of the property being taken.

SPECIAL COMMISSIONERS' AWARD

After hearing ev idcnce from all interested parties, the special comm issioners will determine

the amount of money to be awarded as adequate compensation. You may be responsible for

the costs if the Award is less than or equal to the amount the condemning entity offered

before the condemnation proceeding began. Otherwise, the condemning entity will be

responsible for the costs. The special commissioners will give a written decision to the court

that appointed them. That decision is called the "Award." The Award must be filed with the

court and the court must send written notice of the Award to all parties. After the Award is

filed, the condemning entity may take possession of the property being condemned, even if

either party appeals the Award of the special commissioners. To take possession of the

property, the condemning entity must either pay YOll the amount of the Award or deposit the

amount of the Award into the registry of the court. You have the right to withdraw the

deposited funds from the registry of the court.

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OBJECT ON TO THE SPECIAL COMMISSIONERS' AWARD

If either you or the condemning entity is dissatisfied with the amount of the Award, either

party can object to the Award by filing a written statement of objection with the court. If

neither party timely objects to the Award, the court will adopt the Award as the final

judgment of the court. If a party timely objects to the special commissioners' Award, the

court will hear the case in the same manner as other civil cases.

If you object to the Award and ask the court to hear the matter, you have the right to a trial

by judge or jury. The allocation of costs is handled in the same manner as with the special

commissioners' Award. A [ter that trial, either party may appeal any judgment entered by the

court.

DISMISSAL OF THE CONDEMNATION ACTION

A condemning entity may file a motion to dismiss the condemnation proceeding if it decides

it no longer needs your property. If the court grants the motion to dismiss, the case is over

and you are entitled to recover reasonable and necessary fees for attorneys, appraisers,

photographers, and for other expenses incurred to the date of the hearing on the motion to

dismiss.

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You may also file a motion to dismiss the condemnation proceeding 011 the ground that the

condemning entity did not have the right to condemn the property, including a challenge as

to whether the property is being taken for a public use. If the court grants your motion, the

court may award you reasonable and necessary fees for attorneys, appraisers, photographers,

and for other expenses incurred to the date of the hearing or judgment.

RELOCA TION COSTS

If you are displaced from a residence or place of business, you may be entitled to

reimbursement for reasonable expenses incurred while moving personal property from the

residence or relocating the business to a new site. You are not entitled to these relocation

costs if they are recoverable under another law. If you are entitled to these costs, they cannot

exceed the market value of the property being moved and can only be reimbursed for moving

distances within 50 miles.

RECLAMATION OPTIONS

If private property was condemned by a governmental entity, and the purpose for which the

property was acquired is canceled, or no act:1.lal pr gre I mad L ward the public use or the

property becom s unnece _al)' for publIc lise before the 10th anniversary of the date of the

acquisition, you may have the right to seek to repurchase the property for the fair market

value of the property at the time the public use was canceled. This pI 09 isioll does nol apply

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to pi opel ty acga n cd by a counly. a Ulall it ipa) ity. or the Texas Depaillilelll ofTI anspOilatioll.

I ee Section 19 of enate Bill I amending Section 21.101 of the Texa Property Codej

DISCLAIMER

The information in this statement is intended to be a summary of the applicable portions of

Texas state law as required by HB 1495, enacted by the 80th Texas Legislature, Regular

Session. This statement is not legal advice and is not a substitute for legal counsel.

ADDITIONAL RESOURCES

Further information regarding the procedures, timelines and requirements outlined in this

document can be found in Chapter 21 of the Texas Property Code.

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CSJ: CSJ #PARCEL: Parcel #

NO. ___________

THE STATE OF TEXAS

V.

§§§§§

CONDEMNATION PROCEEDING FILED

IN THE ____________ COURT

Def. Style § OF ___________ COUNTY, TEXAS

PETITION FOR CONDEMNATION

TO SAID HONORABLE JUDGE:

Now comes the State of Texas, herein called Plaintiff, acting by and through the Texas

Transportation Commission, represented herein by the Attorney General of Texas who, at the

request of the Texas Transportation Commission, brings this action and files this its original

Petition for the condemnation of the real property and interests or rights pertaining thereto as

hereinafter-described, and shows that the owners of said land and their address for service are

as follows: Defendants, Title, Addresses, hereinafter called Defendant (whether one or more)

or called owner (whether one or more) and shows as follows:

1.

It is intended that discovery, if any, will be conducted under Level 2.

2.

That Defendant is the owner of the real property situated in ________ County, Texas, as

described in Exhibit "A" attached hereto and incorporated herein for all purposes.

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PETITION FOR CONDEMNATIONPAGE 2

3.

The Texas Transportation Commission has found that in order to promote the public safety,

to facilitate the safety and movement of traffic, and to preserve the financial investment of the

public in its highways, public necessity requires the laying out, opening, constructing,

reconstructing, maintaining, widening, straightening, extending, and operating of controlled access

highways in the State of Texas as a part of the State highway system at such locations as are

necessary to complete the national system of interstate and defense highways throughout the

State of Texas; that the Texas Transportation Commission has found and determined that the

tract(s) of land and improvements, if any, described in Exhibit “A” is/are suitable for public use of

such purposes on the State highway designated as [insert highway], and is intended to use said

land for such purposes, and it is necessary to acquire the fee simple title to said land and

improvements, if any, as provided by law, for use on said State highway designated on Exhibit “A”,

as a part of the State highway system to be constructed, reconstructed, maintained, widened,

straightened, extended, and operated thereon. Plaintiff, in the exercise of the police power for

the preservation of human life and safety, and under existing laws, has designated said highway

as a controlled access highway pursuant to Title 6 of the Tex. Transp. Code Ann. (Vernon 1995),

in accordance with Texas Transportation Code Section 203.031; and where there is adjoining real

property remaining after acquisition of a parcel, the roads are to be constructed, reconstructed

or improved as a part of the highway facility with the right of ingress and egress to or from the

remaining real property adjoining the highway facility to be permitted unless specifically denied,

as designated and set forth on the attached Exhibit A. Plaintiff is entitled to condemn the fee title

in such land and improvements, if any, for said purposes aforesaid and asks that the same be

Page 30


condemned for such purposes aforesaid; provided, however, there is excluded from said estate

to be condemned all the oil, gas and sulphur which can be removed from beneath said land

aforesaid without any right whatever remaining to the owner of such oil, gas and sulphur of

ingress or egress to or from the surface of said land and improvements, if any, for the purpose

of exploring, developing, drilling, or mining of the same.

4.

The Landowner’s Bill of Rights was provided to the property owner in accordance with

Texas Property Code Section 21.0112.

5.

That Plaintiff made a bona fide offer to acquire the property described in Exhibit “A” from

the property owner voluntarily in accordance with Texas Property Code Section 21.0113.

6.

That Plaintiff and Defendant have been unable to agree upon the value of said real estate

and interest therein to be condemned or the damages occasioned by the acquisition of such land

and improvements, if any, and asks that Special Commissioners be appointed as provided by law

to assess the damages of the owner.

Respectfully submitted,

GREG ABBOTTATTORNEY GENERAL OF TEXAS

DANIEL T. HODGEFIRST ASSISTANT ATTORNEY GENERAL

BILL COBBDEPUTY ATTORNEY GENERAL FORCIVIL LITIGATION

Page 31


DAVID C. MATTAXDIRECTOR OF DEFENSE LITIGATION

KRISTINA W. SILCOCKSASSISTANT ATTORNEY GENERALCHIEF, TRANSPORTATION DIVISION

___________________________________

Assistant Attorney GeneralState Bar No. Transportation DivisionP. O. Box 12548Austin, Texas 78711-2548(512) 463-2004(512) 472-3855 - Facsimile

ATTORNEYS FOR PLAINTIFF, THE STATE OF TEXAS

Page 32

**DRAFT - FOR IMPLEMENTATION OF SB 18 CSJ: CSJ #PARCEL: Parcel #

NO. ___________

THE STATE OF TEXAS

V.

§§§§§

CONDEMNATION PROCEEDING FILED

IN THE ____________ COURT

Def. Style § OF ___________ COUNTY, TEXAS

J U D G M E N T

BE IT REMEMBERED, that on this day, came on to be heard the above-entitled and

numbered cause and came the State of Texas (hereinafter “Plaintiff”), and announced

ready for trial and came Defendants (hereinafter “Defendants”) and announced ready for

trial.

I.

Prior to the commencement of the trial of this cause said Defendants admitted and

stipulated in open Court that the Plaintiff, the State of Texas, has the right to recover and

condemn the property described herein; that all prior steps and due processes of law were

duly, legally and timely performed; that all legal prerequisites for the trial of this cause by

this Court had been duly complied with; that the only issue remaining in this cause to be

tried by this Court is the amount of compensation due to the Defendants as a result of the

condemnation of the property described in Exhibit "A" attached hereto (hereinafter "the

property"); and that this Court has jurisdiction of such issue and this cause of action.

II.

From the papers heretofore filed in this cause, the evidence introduced upon the trial

of this cause, and the agreements and stipulations made by the parties upon the trial of

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JUDGMENTPAGE 2

this cause, the Court finds:

(1) That under and by its Petition for Condemnation filed with the clerk of this Court on

[date], Plaintiff sought and prayed for the acquisition, for highway purposes, from the

Defendants, through condemnation of the property located in _______ County, Texas;

Plaintiff, in the exercise of the police power for the preservation of human life and safety,

and under existing laws, has designated said highway as a controlled access highway

pursuant to Title 6 of the Tex. Transp. Code Ann. (Vernon 1995), in accordance with Texas

Transportation Code Section 203.031; and where there is adjoining real property remaining

after acquisition of a parcel, the roads are to be constructed, reconstructed or improved as

a part of the highway facility with the right of ingress and egress to or from the remaining

real property adjoining the highway facility to be permitted unless specifically denied, as

designated and set forth on the attached Exhibit "A", save and except the oil, gas and

sulphur which can be removed from beneath said property without any right whatever of

ingress or egress to or from the surface of said tract of land for the purpose of exploring,

developing, drilling or mining of the same;

(2) That pursuant to said Petition for Condemnation, the Judge appointed three

disinterested real property owners of _________ County, Texas, as Special

Commissioners, who subsequently met, took their oaths of office, set a date of hearing

before such Special Commissioners, and caused notice thereof to be duly served as

prescribed by law, and that said Special Commissioners duly held said hearing;

(3) That upon said hearing all parties appeared, either in person or by their attorneys,

and that after such hearing, the Special Commissioners made and rendered their decision

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JUDGMENTPAGE 3

and Award in writing, and filed said Award with the Judge of this Court on [Award date];

(4) That by said written Award, said Special Commissioners awarded to Defendants

the sum of [Award amount];

(5) That said ___________ duly and timely filed an objection and exception to the

Award of Special Commissioners and caused the parties to be cited accordingly.

III.

Thereupon, came a jury composed of six good and lawful men and women, who, being

duly tested, qualified, empaneled and sworn, heard the pleadings, the stipulations of the

parties, the evidence and the argument of counsel. After hearing the pleadings, the

evidence and argument of counsel, and the stipulations of the parties, and after due

deliberation, said jury reached a verdict in answer to the special issues submitted to them

by the Court as follows:

INSERT THE QUESTION(S) THAT WERE SUBMITTED TO THE JURY AND THE JURY'S

VERDICT(S).

/s/ PRESIDING JUROR

Said verdict was received and filed in the papers of the case and such finding was

duly received by the Court and was filed and entered of record on the minutes of said

Court, and the Court is of the opinion that judgment should be rendered thereon.

IV.

It appearing to the Court and the Court finds from the record, the evidence and the

findings of the jury:

(l) That all proceedings necessary to vest this Court with jurisdiction of the subject

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JUDGMENTPAGE 4

matter and the parties of this cause have been instituted, maintained and complied with

as required by law, and that, therefore, this Court has jurisdiction of the parties hereto and

of the subject matter set forth in this case;

(2) That [Fee Owners only] are the owners in fee simple of the property and that the

State of Texas, as condemnor, is condemning and acquiring, under and by virtue of these

condemnation proceedings, the fee simple title in and to the property, and that the State

of Texas is authorized to condemn the property;

(3) That from the pleadings and evidence and verdict of the jury, the Defendants

should have and recover of and from Plaintiff the sum and amount of [Judgment amount]

which represents, as determined by the Court, the reasonable market value of the property

and improvements thereon as of [Date of take], and the damages, if any, to Defendants'

remaining lands;

(4) That the State of Texas in turn should have and recover from Defendants as

more specifically set forth in Plaintiff's Petition for Condemnation, a fee simple title in and

to the property;

(5) That Plaintiff did on [Date of take], deposit into the Registry of this Court the

sum of [Award amount] for the use and benefit of Defendants, which amount remains in

the Registry of the Court and may be withdrawn at any time by the Defendants upon proper

order entered by the Court;

(6) That all costs of Court incurred herein should be taxed against the Plaintiff, the

State of Texas, which costs shall be paid only to the [County/District] Clerk of ________

County, Texas.

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JUDGMENTPAGE 5

V.

It is therefore ORDERED, ADJUDGED and DECREED that the State of Texas do

have and recover of and from the Defendants fee simple title in and to the property,

situated in ______ County Texas, and that Defendants have and are entitled to a judgment

from the State of Texas in the sum of [Judgment amount] for the interests in said

properties herein condemned, and for damages, if any, to Defendants' remaining property;

which amounts have been paid into the Registry of the Court by Plaintiff and that Plaintiff

is hereby released and discharged from its constitutional obligation to pay such

compensation for the taking of the property for public use.

VI.

It is further ORDERED, ADJUDGED and DECREED that the fee simple title to the

property is hereby decreed to and vested in Plaintiff, the State of Texas, and where there

is adjoining real property remaining after acquisition of a parcel, the roads are to be

constructed, reconstructed or improved as a part of the highway facility with the right of

ingress and egress to or from the remaining real property adjoining the highway facility to

be permitted unless specifically denied, as designated and set forth on the attached Exhibit

"A"; however, there is excluded from said estate vested in Plaintiff all the oil, gas and

sulphur which can be removed from the property aforesaid without any right whatsoever

remaining to the owner of such oil, gas and sulphur of ingress or egress to or from the

surface of the property for the purpose of exploring, drilling, developing or mining the same.

VII.

The Defendants are hereby notified that under the provisions of Subchapter E,

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JUDGMENTPAGE 6

Chapter 21 of the Property Code, the owner or the owner's heirs, successors, or assigns

may, under certain circumstances, be entitled to repurchase the property or, after ten years

from the date of this judgment, request certain information from the State, by and through

the Texas Department of Transportation, relating to the use of the property and any actual

progress made toward that use. The repurchase price, if applicable, is the price paid to the

owner by the State for the property in accordance with the terms of this judgment.

VIII.

It is further ORDERED, ADJUDGED and DECREED that all costs of Court be and

the same are hereby adjudged against the Plaintiff, which costs shall be paid to the

[County/District] Clerk of ______ County, Texas.

SIGNED this the ______ day of _________________, 201___.

JUDGE, Court_________ County, Texas

APPROVED AS TO FORM:

GREG ABBOTTAttorney General of Texas

______________________________

AAG

Assistant Attorney GeneralState Bar NumberTransportation DivisionP. O. Box 12548Austin, Texas 78711-2548(512) 463-2004(512) 472-3855 - Facsimile

Page 40

JUDGMENTPAGE 7

ATTORNEYS FOR PLAINTIFF, THE STATE OF TEXAS

Opp. AttyState Bar Number _____________________AddressTelephone:Facsimile:

ATTORNEY FOR DEFENDANTS,

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Section 3: Access: The Brave New World

Page 43

Section 4: SB 18

Page 73

Section 5: 43 TAC Chapter 21 Changes

Page 103

Section 6: Contact Information

Page 119

Contact Information

Email address: [email protected] Additional Contact Information

Page 121

Section 7: Newsletters

Page 123

Section 8: Notes

Page 125

Notes

Page 127

Notes

Page 128

Notes

Page 129

Notes

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SB 18 Implementation Training TxDOT FY 2012

sb 18 implementation training -...

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